Setting the Record Straight on US Freedom of Navigation Operations in the South China Sea

The headline to this article promises a lot, especially since U.S. officials have been unwilling to publicly clarify the precise circumstances of the USSLassen‘s operation in the South China Sea, near Subi Reef, on October 27, 2015. Fortunately, after more than two weeks of considering various public reports, citing mostly anonymous U.S. official sources and, notably, the skipper of the Lassen itself, experts have determined that the first U.S. freedom of navigation operation near Subi Reef was not an assertion of high seas freedom by the United States. Rather, the USS Lassen transited within 12 nautical miles of Subi Reef in compliance with the innocent passage provisions outlined in Part II, Article 19 of the United Nations Convention on the Law of the Sea (UNCLOS). In essence, the October 27 U.S. freedom of navigation patrol asserted that ships – both civil and military – had the right to sail near Subi Reef without notifying Chinese authorities as long as they complied with innocent passage regulations.

It is important to note that the Lassen‘s operation, even if it was innocent passage, is still a freedom of navigation operation. As the U.S. Department of Defense notes, these operations are conducted with serious legal review. The Lassen‘s operation specifically protests the excessive Chinese requirement that ships seeking to sail within 12 nautical miles of Subi Reef need to provide prior notification to Chinese authorities. UNCLOS does not require this under Part II, Article 19. Rather, Article 19 lists a range of prohibited activities that if carried out within 12 nautical miles of a feature entitled to a territorial sea resulted in a violation of innocent passage. As far as the U.S. policy of protesting excessive maritime claims while remaining neutral on the issue of the sovereignty of features goes, the Lassen operation is consistent. The United States could have made a stronger statement by considering Sandy Cay terra nulius, but since the feature falls within the claims of multiple South China Sea claimants, this would have been a radical departure from its status quo approach to the South China Sea.

So, where can Washington go from here? It’s worth revisiting the reasons why Subi Reef in particular was chosen for the first freedom of navigation operation. Notably, it is one of seven Spratly features that China has converted into a man-made island with dual-use infrastructure, including a possible 3000 meter airstrip, a helipad, and other facilities. More importantly, Subi Reef, along with Mischief Reef, are two such features that are submerged at low-tide. This means that under any reasonable interpretation of UNCLOS, they are likely not entitled to a 12 nautical mile territorial sea on their own (as I explain above, Subi may well be entitled to a territorial sea due to the existence of Sandy Cay nearby).

Mischief Reef, however, should be where every South China Sea watcher’s eyes should go next. Like Subi, Mischief Reef is not entitled to any territorial sea under a reasonable reading of UNCLOS. Unlike Subi Reef, Mischief Reef is not within 12 nautical miles of any nearby feature that could be interpreted as a “rock” or “island,” thereby possibly granting it a territorial sea (by my measurements, the nearest feature is at least 18 nautical miles away and submerged at low-tide). Now, a U.S. freedom of navigation operation near Mischief Reef could well be on the cards in the future. Reports have already noted that the White House chose “innocent passage by Subi Reef” from a menu of options offered to it by the Pentagon; certainly, a full-fledged high seas assertion operation within 12 nautical miles of Mischief Reef was also presented on that list. So why didn’t the Obama administration opt for this option?

The answer, I suspect, is that an operation asserting high seas freedoms within 12 nautical miles of Mischief Reef would have been highly provocative, particularly for a first move when the White House is still relatively unsure of how China might react. As Timothy Choi noted recently, a non-innocent freedom of navigation operation would see a U.S. Navy vessel sail with its fire control radars on, collecting intelligence, and possibly even deploying helicopters or unmanned aerial assets within 12 nautical miles of a China-occupied feature. Indeed, such an operation could include a P-8A Poseidon surveillance aircraft within 12 nautical miles as well (something that we now know did not occur during the Lassen‘s operation near Subi Reef). Incidentally, the Subi operation is a proportional tit-for-tat for the Chinese Navy’s late-August innocent passage transit through the Aleutian Islands off Alaska.

The administration’s sensitivity to appearing provocative toward China is somewhat understandable given that the U.S.-China bilateral faces other challenges. Expending diplomatic capital over a row in the South China Sea could reduce U.S. leverage on other significant issues in the bilateral relationship, including cyber espionage, climate change, and talks over an investment treaty. From a diplomatic perspective, the Lassen may have gotten the message just right without causing a broader bilateral falling out.

The greatest advantage, in my view, of a freedom of navigation operation near Mischief Reef is that it would make it difficult for Beijing to continue to remain ambiguous about the precise maritime entitlements it claims for its outposts in the Spratlys. As Graham Webster has outlined in these pages, China is generally careful to avoid couching its claims in the region in terms of specific, international legal terms. Indeed, as a video showing a U.S. P-8A surveillance aircraft’s encounter with People’s Liberation Army-Navy units stationed in the area showed, Chinese troops describe a “military alert zone” or “military safety zone” around these facilities. Neither of these terms has any clear meaning under UNCLOS. The Lassen‘s operation somewhat touched on this, but because of Subi’s potential territorial sea entitlement, China can continue to dodge the question.

Granted, with the Permanent Court of Arbitration’s favorable ruling on the issue of its jurisdiction in the Philippines’ case against China, which I covered in detail for The Diplomat earlier, Beijing is already facing something of a time crunch. If all goes well in the Hague, we could have a decision on the international legal status of the nine-dash line and these claims as early as next summer. In the meantime, if the U.S. Navy wants to show it will continue to protect the public good that is the freedom of navigation and overflight in the South China Sea, it should keep up a regular drumbeat of patrols. Subi was a good way to test the waters, but a freedom of navigation operation asserting high-seas freedoms within 12 nautical miles of Mischief Reef needs to be on the cards. If reports that these patrols are due twice every quarter are true, the U.S. Navy will have another opportunity soon.